The Patna High Court, while allowing an appeal filed against the judgment of conviction dated 28.01.2021 and order of sentence dated 30.01.2021 rendered by learned Additional Sessions Judge-Cum-Special Judge for the offense punishable under Section 20(b)(II)(c) of the Narcotic Drugs and Psychotropic Substance Act, held that glaring lapses on the part of the prosecution during the investigation would certainly affect the credibility of the prosecution case.
Brief Facts:
On secret information, a raid was conducted in the house of appellants/convicts, and in the same series, where, at the first instance from the house of the appellant/convict was raided, whereupon search, in three plastic packets, ganja was recovered. After investigation, a chargesheet was submitted for the offenses punishable under Sections 20(b)(ii)(c) of the NDPS Act, against aforesaid appellants/convicts. No witness was examined in defense during the trial as well as no document was exhibited in defense. Learned Trial Court, after completion of the trial, convicted all above-named appellants/accused. Aggrieved thereof, the present appeal has been preferred by the appellants/accused under Section 372(2) of Cr.P.C.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that the mandatory provision regarding compliance with Section 42 of the NDPS Act was not followed while searching the premises of the appellants/convicts. He argued that the compliance of Section 52 A of the NDPS Act was not followed. The seized ganja was not produced before the trial court.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that there was the recovery of a huge commercial quantity of ganja/contraband which was made from the house of appellants/convicts, where the entire search was made in the presence of the Magistrate. He argued that the samples were taken from each of the packets and therefore, there are no irregularities as far as sampling of recovered ganja/contraband is concerned. He contended that merely on the ground that the seizure is not supported by any independent witnesses, the conviction cannot be questioned.
Observations of the Court:
The Court noted that re-appreciation of evidence as available on record is required for the just and proper disposal of these appeals. Section 52-A of the N.D.P.S. Act requires the preparation of an inventory of the seized property in the presence of the Magistrate after taking photographs and certifying such photographs to be true. In case the aforesaid procedure is followed, every court trying an offense under the N.D.P.S. Act is required to treat the inventory as primary evidence in respect of such offense.
The Court observed that glaring lapses on the part of the prosecution during the investigation would certainly affect the credibility of the prosecution case. The case of the prosecution is based only on the oral testimony of official witnesses with the arrest of the appellants. The evidence on behalf of the prosecution does not inspire confidence.
The decision of the Court:
The Patna High Court, allowing the appeal, held that the impugned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge are hereby set aside.
Case Title: Jodha Paswan vs The State of Bihar
Coram: Hon’ble Justice Chandra Shekhar Jha
Case no.: CRIMINAL APPEAL (SJ) No.885 of 2023
Advocate for the Appellant: Mr. Raju Kumar Singh
Advocate for the Respondents: Mr. Mukeshwar Dayal
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